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Delegated Legislative Authority Under the CA Administrative Procedure Act

Executive branch agencies are delegated quasi-legislative authority by the lawmaking branch of government

By Chris Micheli, October 29, 2021 2:43 am

Executive branch agencies, whether at the federal or state levels of government, are delegated quasi-legislative authority by the lawmaking branch of government – Congress at the federal level and the Legislature at the state level. The legislative branch of government cannot delegate all of its lawmaking function to the executive branch of government. So, how do courts view the legislative grant of authority to executive branch agencies in this state?

From early on, the courts in California have noted that the Legislature has power to delegate to a proper authority for the making of suitable rules and regulations for conduct and transactions of any branch. In re Potter (1913) 164 Cal. 735 Nonetheless, the authority of an administrative agency to adopt regulations is limited by the enabling legislation. Moreover, an administrative regulation which impairs the scope of a statute must be declared void. Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App. 4th 429

In a similar fashion, courts have explained that the scope of an agency’s quasi-legislative authority has to be defined and limited by the Legislature, and creation of such a power is a delegation of legislative authority, the exercise of which is legislative in character. Schabarum v. California Legislature (1998) 60 Cal.App. 4th 1025, review denied

More specifically, the rulemaking authority of an agency is circumscribed by the substantive provisions of the law governing the agency. In re McGhee (2019) 246 Cal.Rptr. 3rd 834; In re Edwards (2018) 237 Cal.Rptr. 3rd 673 Similarly, administrative agency action must be within the scope of authority conferred by the Legislature and cannot be inconsistent with its authorizing statutes. County of San Diego v. Bowen (2008) 166 Cal.App. 4th 501, review denied

In addition, the Legislature may delegate authority to administrative boards to adopt and enforce reasonable rules for carrying into effect the expressed purpose of a statute even though such rules include authorization to exercise discretion in doing so, provided that the discretion is not purely arbitrary and does not amount to a sanction to add to or change a statute or confer on the board a right to determine what law must be in a particular case. The Legislature may not delegate authority to a board or commission to adopt rules which abridge, enlarge, extend, or modify a statute creating the right. Harris v. Alcoholic Beverage Control Appeals Board (1964) 228 Cal.App. 2d 1

The delegation of legislative authority to an administrative agency sometimes includes the power to elaborate the meaning of key statutory terms, but the proper interpretation of a statute is ultimately the court’s responsibility. Our Children’s Earth Foundation v. State Air Resources Board (92015) 234 Cal.App. 4th 870, review denied

In determining whether a regulation is within the scope of the authority conferred pursuant to a delegation of legislative power, the judiciary independently reviews the administrative regulation for consistency with controlling law, where “consistency” means being in harmony with and not in conflict with or contradictory to existing provisions of law. California Association of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App. 4th 286

Agencies do not have discretion to promulgate regulations that are inconsistent with the governing statute, or that alter or amend the statute or enlarge its scope. Courts afford quasi-legislative rules the dignity of statutes and, when scrutinizing the validity of such rules, the scope of review is narrowly confined to determining whether the regulation (1) comes within the scope of the controlling statute and (2) is reasonably necessary to carry out the statutory purpose. Slocum v. State Board of Equalization (2005) 134 Cal.App. 4th 969

Where a party challenges a regulation on the ground that it is in conflict with the governing statute or exceeds the lawmaking authority delegated by the Legislature, the issue of statutory construction is a question of law on which a court exercises independent judgment. When a regulation is challenged on the basis that it is not reasonably necessary to effectuate the purpose of the statute, the court of appeal’s inquiry is confined to whether the rule is arbitrary capricious, or without rational basis. PaintCare v. Mortensen (2015) 233 Cal.App. 4th 1292, review denied

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